UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1305

DEBORAH KATZ PUESCHEL,

Plaintiff - Appellant,

versus

NORMAN Y. MINETA, in his official capacity as

Secretary, U.S. Department of Transportation,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonard D. Wexler, Senior

District Judge, sitting by designation. (1:01-cv-01471-LDW)

Argued: March 14, 2007 Decided: May 2, 2007

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part, vacated and remanded in part, and appeal

dismissed in part by unpublished per curiam opinion.

ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEWMAN, P.C.,

Washington, D.C., for Appellant. Ralph Andrew Price, Jr.,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Chuck

Rosenberg, United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

The plaintiff in the present action, Deborah Katz Pueschel

(Plaintiff), is a former air traffic controller with the Federal

Aviation Administration (the FAA). On August 18, 1992, Plaintiff,

while still employed by the FAA, filed an administrative complaint

with the Equal Employment Opportunity Commission (EEOC) alleging,

inter alia, that the FAA had interfered with her filing of claims

with the federal Office of Worker’s Compensation Programs (OWCP) on

account of her gender, her disability, and in retaliation for her

engaging in protected activity (August 1992 EEOC Complaint). On

September 24, 2001, Plaintiff filed the present action in the

United States District Court for the Eastern District of Virginia

against Norman Y. Mineta, the Secretary of Transportation (the

Secretary), based upon the allegations in her August 1992 EEOC

Complaint. The district court complaint alleged gender

discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and

disability discrimination and retaliation in violation of the

Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.

On November 6, 2002, the district court dismissed the present

action in toto under the doctrine of res judicata on the basis that

Plaintiff, having unsuccessfully litigated the same claims in a

prior action, including the Fourth Circuit affirming the judgment,
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see Pueschel v. Slater, 173 F.3d 425 (4th Cir. 1999), could not

relitigate those claims.

With one exception, the Fourth Circuit affirmed, holding that

res judicata barred all but one of Plaintiff’s claims. Pueschel v.

Mineta (Pueschel II), 369 F.3d 345, 349 (4th Cir. 2004) (“We also

hold, however, that her OWCP claim--which alleges that the FAA’s

interference with the processing of her workers’ compensation

claims has resulted in her benefits being improperly taxed--is not

precluded.”). Accordingly, we vacated the district court’s

dismissal of that claim and remanded for further proceedings. Id.

at 356.

On remand from Pueschel II, the district court denied

Plaintiff’s first motion for leave to amend her complaint to add

new claims based upon facts entirely different from those already

alleged in the complaint. The district court also set the case for

trial solely on the remanded claim. The magistrate judge removed

(from the docket) as moot, Plaintiff’s second motion for leave to

amend the complaint, which motion sought to add another new claim

based upon facts entirely different from those already alleged in

the complaint as well as an entirely new legal theory. Ultimately,

the district court dismissed the remanded claim pursuant to the

Secretary’s motion to dismiss for failure to state a claim upon

which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The

district court granted the motion based upon its mistaken belief
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that Plaintiff had voluntarily chosen to abandon prosecution of the

remanded claim and that none of the other allegations which she

sought to litigate on remand were within the scope of the remanded

claim. In this latter regard, the district court expressly

rejected Plaintiff’s argument that, in addition to incidents of

OWCP interference alleged in her August 1992 EEOC Complaint, the

Fourth Circuit had also remanded for further proceedings

allegations of OWCP interference based upon incidents that she

cited in a separate and distinct administrative complaint that she

had filed with the EEOC in 1994.

Plaintiff timely noted the present appeal. In the present

appeal, Plaintiff challenges: (1) the district court’s dismissal

of the remanded claim, which claim she argues included her

allegations of OWCP interference as set forth in her 1994 EEOC

Complaint; (2) the district court’s denial of her first motion for

leave to amend her complaint on remand; (3) the magistrate judge’s

removal (from the docket) as moot her second motion for leave to

amend her complaint; and (4) the district court’s alleged off-therecord grant of the Secretary’s motion in limine to exclude any

evidence from being introduced at trial concerning alleged

instances of interference by FAA personnel with Plaintiff’s then

pending OWCP claims before 1987 and after the filing of Plaintiff’s

1992 EEOC Complaint.
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Having thoroughly reviewed the parties’ briefs and record on

appeal, and having heard oral argument in this case, we: (1)

affirm the district court’s dismissal of Plaintiff’s complaint in

the present action to the extent the district court held that the

Fourth Circuit did not remand for further proceedings allegations

of OWCP interference based upon the incidents cited in Plaintiff’s

1994 EEOC Complaint; (2) vacate and remand the district court’s

dismissal of Plaintiff’s complaint in the present action to the

extent Plaintiff’s complaint alleges violations of Title VII and

the Rehabilitation Act based upon allegations of OWCP interference

from April 1992 through August 1992 as contained in Plaintiff’s

August 1992 EEOC Complaint (the district court misunderstood

Plaintiff as having abandoned her allegations of OWCP interference

from April 1992 through August 1992); (3) affirm the district

court’s denial of Plaintiff’s first motion for leave to amend; and

(4) affirm the magistrate judge’s removal from the docket of

Plaintiff’s second motion for leave to amend. Finally, we dismiss

the Plaintiff’s appeal as to her assignment of error that the

district court erroneously granted the government’s motion in

limine. We lack appellate jurisdiction to consider this assignment

of error, because Plaintiff failed to comply with Federal Rule of

Appellate Procedure 10(c), which rule sets forth the procedure for

making an appealable record of an otherwise off-the-record ruling.

Cf. United States v. Burns, 104 F.3d 529, 539 (2d Cir. 1997)
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(refusing to review alleged off-the-record ruling because appellant

failed to comply with Federal Rule of Appellate Procedure 10(c)).

As the appealable record stands now, the district court did not

rule upon the Secretary’s motion in limine.

AFFIRMED IN PART, VACATED AND REMANDED

IN PART, AND APPEAL DISMISSED IN PART